Menard v. Florida Attorney General et al
Filing
25
OPINION AND ORDER granting voluntary dismissal of Grounds Five and Seven in 4 Memorandum in support and Grounds Five and Seven are voluntarily dismissed; denying 1 Petition for writ of habeas corpus. A certificate of appealability is denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 5/20/2020. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES MATTHEW MENARD,
Petitioner,
v.
Case No:
2:16-cv-854-FtM-29NPM
FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
OPINION AND ORDER
Petitioner
James
Matthew
Menard
(petitioner
or
Menard),
represented by counsel, filed a 28 U.S.C. § 2254 Petition for
Habeas Corpus on November 30, 2016. Doc. #1, Petition.
Menard, a
Florida prisoner, challenges his convictions and sentences for
aggravated battery with a deadly weapon, trespass of property, and
third degree felony murder entered by the Twentieth Judicial
Circuit Court in and for Collier County in Case No. 10-000045-CF.
Id. at 1.
5-14.
The Petition raises seven grounds for relief. Id. at
Menard filed a Memorandum of Law (Doc. #4, Memorandum) and
exhibits (Docs. 6-9) to support his Petition.
In his Memorandum,
Menard requests to withdraw Grounds Five and Seven of the Petition.
Doc. #4 at 36.
The Court construes the Memorandum as incorporating
a motion to voluntary dismiss Grounds Five and Seven, which will
be granted.
Respondent filed a Response to the Petition on August 14,
2017.
Doc.
#16,
Response.
Respondent
also
filed
exhibits,
including the pretrial motion to dismiss, the stand your ground
hearing transcript, and the trial transcript. Doc. #18.
Although
afforded the opportunity (Doc. #20), Menard elected not to file a
reply.
I. Timeliness and Evidentiary Hearing
Respondent concedes the Petition is timely filed. Doc. #16
at 7.
The Court agrees.
Menard asks for an evidentiary hearing as to some of the
grounds he raises.
A federal court “must limit its review under
§ 2254(d) to the state court’s record.”
Brannon v. Sec'y, Fla.
Dep't of Corr., No. 19-13757, 2020 WL 2188675, at *5 (11th Cir.
May 6, 2020)(finding district court erred in granting evidentiary
hearing and considering evidence not before the state court).
“An evidentiary hearing is unnecessary unless it would “enable [a
postconviction
petitioner]
to
prove
the
petition’s
factual
allegations, which, if true, would entitle [him] to federal habeas
relief.” Samuels v. Sec'y, Dep't of Corr., No. 19-13445, 2020 WL
2097260, at *1 (11th Cir. May 1, 2020)(quoting Crowe v. Hall, 490
F.3d 840, 847 (11th Cir. 2007)). “[T]he burden is on the petitioner
to establish the need for an evidentiary hearing.”
Jones v. Sec’y,
Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th Cir. 2016)(citations
omitted), cert. denied, __ U.S. __, 137 S. Ct. 2245 (2017).
- 2 -
Conclusory allegations will not suffice.
Instead, petitioner must
proffer specific facts and evidence, which if true, would prove an
entitlement to relief.
Id. at 1319.
Menard has set forth no specific facts or evidence which
warrant an evidentiary hearing.
The Court finds an evidentiary
hearing is not warranted because the material facts are developed
in the record.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)(if
the record refutes the factual allegations in the petition or
otherwise precludes habeas relief, a district court need not hold
an evidentiary hearing); see also Jones, 834 F.3d at 1318-19.
Menard has not demonstrated he is entitled to an evidentiary
hearing, 28 U.S.C. § 2254(e)(2), and therefore his request for an
evidentiary hearing is denied.
II. Factual and Procedural Background
The State of Florida charged Menard with six felony offenses:
(1) second degree murder with a firearm of Jake Couture, (2)
attempted second degree murder for discharging a firearm and
causing great bodily injury to Michael Fleitas, (3) attempted
second degree murder for discharging a firearm and causing great
bodily
harm
to
Brandon
Standifer,
(4)
armed
trespass
of
the
Brittany Bay apartment complex, (5) armed trespass of the property
of Brandon Morales or Dallas Hubbard, and (6) third degree felony
- 3 -
murder of Jake Couture occurring due to armed trespass. (Ex. 1:9597, 1 Third Amended Information).
Trial Court Proceedings
Menard filed a pretrial motion to dismiss the charges under
Florida Statute section 776.013, 2 asserting he was immune from
criminal prosecution because his use of deadly force was justified.
(Ex. 1:49-50).
The state court held an evidentiary hearing on the
motion. (Ex. 2, Hearing Transcript).
Menard did not testify at
the hearing. The Court accepts the summary of the evidence adduced
at the hearing as set forth in Menard’s initial brief on direct
appeal, in which the State concurred. (Ex. 5) 3.
Facts and Evidence Adduced at Hearing
At the hearing, Carlos Nazco testified that Mr. Menard
had been living with his family for about two to three
months. According to Mr. Nazco, on the night in question,
he and Mr. Menard had plans to visit Mr. Nazco’s sister,
Nattie Montes, who lived in the Brittany Bay Apartment
complex.
Mr. Nazco testified that he and Mr. Menard
often stopped by her apartment without calling in
advance.
Mr. Nazco further testified that Ms. Montes
had no problem with their custom and that they had
visited her in this manner on four or five occasions
prior to the night in question. Mr. Nazco attempted to
call Ms. Montes prior to departing, but she did not
answer the phone. Nevertheless, in keeping with their
custom, Mr. Menard and M. Nazco proceeded to Brittany
Bay apartments to visit her. Two other individuals,
Philip Markle and Jacob Markham, accompanied them on
1
The Court will refer to paper exhibits filed by Respondent
on August 18, 2017 (Doc. #18) as “Ex _.”
2
This statute is commonly known as “Stand Your Ground.”
3
The Court omits the internal citations to the hearing
transcript and footnotes.
- 4 -
this trip.
The Brittany Bay Apartment complex has a
gate around its perimeter.
Rather than attempting to
use the keypad to call a resident to gain access, Mr.
Menard entered the complex through the exit gate, which
opened after another vehicle departed the complex.
Mr. Nazco testified that on the way to Ms. Montes’s
apartment the group decided to stop at another Brittany
Bay apartment. Mr. Menard parked in front of one of the
apartment buildings whereupon the passengers, with the
exception of Mr. Nazco, exited the vehicle. There is
some disagreement about what happened next. According to
one witness, Korenzo Smith, a group of males, including
Mr. Menard, knocked on the apartment door of Brandon
Morales.
A neighbor, Dallas Hubbard, testified that
Menard and another “little boy” approached “one of my
friends and said do you know who Brandon Morales is.”
However, according to Mr. Nazco, Mr. Menard, Mr. Markham
and Mr. Markle did not approach anyone or knock on any
apartment doors but simply stood in front of Mr. Menard’s
truck talking.
At some point after their arrival, a white Mercedes
pulled into the parking lot carrying Brandon Standifer,
Brandon Morales, Jake Couture, and Michael Fleitas. Mr.
Nazco stated that the people who exited the Mercedes
began arguing with Mr. Menard after they got out of the
car, “screaming stuff back and forth.”
Mr. Nazco
testified that during the argument a “short dark-skinned
guy,” who was later identified as Brandon Standifer, was
“screaming go get the fire, fire” to one of his cohorts.
According to Mr. Nazco, “some tall kid with a big Afro,
I guess he went to go get it and he came out with a gun
or whatever” and was then “standing on the sidewalk”
less than ten feet from Mr. Menard. The individual with
an Afro was later identified as Brandon Morales. Mr.
Nazco described the gun as “an Uzi-type thing” that was
“[a]ll black.”
Another witness, Dallas Hubbard, who
lived next door to Morales, corroborated Mr. Nazco’s
testimony regarding the gun held by Mr. Morales, stating
that it “looked like an Uzi or something like that.”
The evidence ultimately revealed that the item was not
a gun at all but was a replica of an Uzi that shot BB
pellets. However, unlike other toy guns, which have an
orange or red tip to allow for identification as toys,
this replica Uzi had its safety markings removed. When
- 5 -
asked what Morales was doing with the replica Uzi,
Hubbard stated that he was “trying to act like a badass. . . .”
All of the witnesses testified that a physical
altercation ensued between Mr. Standifer and Mr. Menard,
with Mr. Standifer acting as the aggressor. Mr. Nazco
testified that after the individuals were “screaming
stuff back and forth.” He further testified that Mr.
Standifer took off his shirt and then pushed Mr. Menard.
Ms. Hubbard likewise testified that Mr. Standifer was
“very aggressive” toward Mr. Menard and “pushed him to
where he almost fell.”
Another witness, Joleen
Pelletier, who observed the events from her window, also
confirmed that the white male, Mr. Menard, did not lay
hands on anyone and was pushed by a black male, Mr.
Standifer, who had taken his shirt off in anticipation
of a fight. No witness testified that Menard was the
aggressor. Directly after stumbling as a result of Mr.
Standifer’s push, Mr. Menard pulled a gun from his pocket
and fired a series of shots while moving sideways toward
his pickup. One bullet hit Mr. Standifer in the chest;
another hit Mr. Fleitas in his buttocks. Both lived.
Another third bullet hit Jake Couture in the back and
killed him.
Defense counsel argued at the hearing on the motion to
dismiss that Mr. Menard was immune from prosecution
under Section 776.013 and Section 776.032 of the Florida
Statutes.
Specifically, Mr. Menard claimed he had a
standing invitation to visit Ms. Montes at the Brittany
Bay apartment complex and had the legal right to stand
his ground and use deadly force in defending himself
from the threat he perceived from Mr. Standifer and
replica Uzi brandished by Mr. Morales.
The court orally denied the motion. The judge opined
that Mr. Menard did not have a “legal right to be where
he was.” The judge additionally ruled that Mr. Menard
was the aggressor because he failed to leave the
apartment complex when asked.
With respect to the
threat perceived by Mr. Menard, the state trial court
stated that “the only force used against him was a push,”
which it found insufficient to “lead a reasonable person
to believe that there was imminent danger to himself or
to another.”
- 6 -
The judge refused to consider the replica Uzi in
determining whether Menard used force justifiable under
Florida law:
. . . the evidence wasn’t that the gun was
pointed at anybody other than that it was
present and it may have been seen by someone.
But I haven’t heard any testimony to indicate
that the defendant in this particular case was
aware of the firearm.
What we have is an
individual who is in front of him, who is
shirtless, who appears to be unarmed who
pushes him and then immediately, depending on
who you listen to: miss - - Ms. Pelletier
indicated it was instantaneous; Mr. Zarco
(sic) said he pushed and he fired; Mr. Smith
said he pushed and the guy started the guy
started shooting. That was more of a reaction
than it was an indication that anybody had an
imminent fear. It was - - there was - - the
force was in excess of what was presented. .
. . Again, he was faced with an individual who
was shirtless and unarmed. The push, I don’t
think - - or I find it certainly was not one
that would place a reasonable person in
imminent fear and I therefore find that the
defendant
hasn’t
met
its
burden
by
a
preponderance of the evidence that the
defendant was justified under these facts in
the use of the deadly force.
(Doc. #18, Ex. 5.)
Based on the court’s oral findings (Ex. 2 at 133-137), the
state court issued a written order denying the motion to dismiss
under Florida Statute Sections 776.013 and 776.032. 4 (Ex. 1:92A).
Menard proceeded to a jury trial held in January, 2012. (Ex.
3, Trial Transcript).
The testimony at trial was substantially
4
Section 776.032(1) provides immunity from criminal
prosecution for persons using force permitted in section 776.012,
section 776.013, or section 776.031.
- 7 -
similar to that produced at the stand-your-ground hearing.
The
Court accepts the summary of the additional facts as set forth in
Menard’s
initial
brief
on
direct
appeal,
in
which
the
State
concurred. (Ex. 5) 5.
Additional Facts and Evidence Adduced at Trial
With respect to the nature of the threat facing the
defendant, Mr. Standifer testified that he told Mr.
Menard and his friends, “Look, you got to get the F out
of here” and described the tactic of taking his shirt
off as a “bluff game” designed to “scare them to leave,
rather than staying” in the parking lot. Mr. Standifer
explained the tactic on cross-examination:
“I was
bigger than I am at the time. You understand what I’m
saying? Normally, when I take off my shirt, everybody
is like, oh, he’s big. That’s scary to most people.”
Regarding the threat posed by the replica Uzi, Ms.
Hubbard testified that when she saw it on the night in
question and she believed it was a real gun. She also
confirmed that the replica had an Uzi-like clip that
protruded from the bottom of the gun. In addition, she
testified that Mr. Morales “was waving [the replica Uzi]
back and forth to where [she] could see it.” Ms. Hubbard
further testified that Mr. Morales “always acts like a
bad ass” and that he behaved in conformity with this
trait on the night in question.
Mr. Morales testified that he went to his closet to get
the replica Uzi, came back outside, and held the replica
Uzi by his side during the encounter “for protection.”
In addition, when asked whether he intended that others
viewing the replica to perceive it as a real firearm,
Mr. Morales answered in the affirmative.
Mr. Morales
also confirmed that the replica Uzi has a clip that
stores BB pellets and stock apparatus that folded
outward to allow the replica to be positioned and shot
from the shoulder.
5
The Court omits the
transcript and footnotes.
internal
- 8 -
citations
to
the
trial
On the issue of the legality of Mr. Menard’s presence in
Brittany bay, the State introduced evidence that
Brittany bay Apartment complex is broken up into three
separate divisions, each with a separate access road and
a separate entry gate. An individual can walk from one
section to another. The apartment complex is owned and
maintained by one corporation and the entirety of the
complex is enclosed by a single fence around the
perimeter of the property.
When asked why they did not proceed directly to the
apartment of Ms. Montes, both Mr. Nazco and Mr. Menard
explained that they planned on visiting her but the other
two passengers, Mr. Markle and Mr. Markham, suggested
that they visit the residents in the section where the
incident occurred prior to doing so.
Mr. Menard
testified that he remained close to the truck while Mr.
Markle and Mr. Markham knocked on the door of Mr.
Morales’ apartment.
With respect to his perception of the threat he faced,
Mr. Menard testified that Mr. Standifer “rushed over”
towards him.
Mr. Menard stated that he told Mr.
Standifer that he did not know him and that he did not
want problems with him.
Mr. Menard testified that
Standifer then took several steps backward, took off his
shirt, and yelled “get the fire.”
Though he did not
immediately understand the import of Mr. Standifer’s
command, he noticed a weapon was pulled after his friend,
Mr. Markham, “took off running across the parking lot.”
He recognized that the gun was not a handgun but was a
semiautomatic weapon.
Mr. Menard stated that Mr.
Morales was “waving [the gun] around,” threatening him
with the gun, and pointing at him.
Mr. Menard testified that “it was pretty hectic.
Everybody - - people were just saying, oh, we’re going
- - somebody was saying, we’re going to kill these guys
. . . we’re going to mess these guys up.” Mr. Menard
averred that, with the weapon being pointed at him and
Mr. Standifer aggressing towards him, he was scared for
his life. He further testified that he intended to get
away, but Mr. Standifer kept moving toward him while he
recovered from being pushed and he feared Mr. Standifer
might try to pin him down. As a consequence, when he
recovered from being pushed nearly to the ground, with
Mr. Standifer still moving towards him and the gun still
- 9 -
pointed at him, Mr. Menard drew his weapon and opened
fire, shooting first at Mr. Standifer and then at Mr.
Morales.
(Doc. #18, Ex. 5.)
Defense counsel moved for judgment of acquittal on all counts
at the close of the State’s case and renewed the motion at the
close of all evidence.
The state trial court denied these motions.
The jury returned the following verdicts:
•
Count
1:
guilty
of
the
lesser
included
offense
of
manslaughter of Couture;
•
Count 2: guilty of the lesser offense of aggravated
battery of Fleitas;
•
Count 3: not guilty;
•
Count 4: guilty of armed trespass;
•
Count 5: not guilty; and
•
Count
6:
guilty
of
third-degree
felony
murder
of
Couture.
(Ex.
1:155-59).
In
due
course
the
trial
court
struck
the
manslaughter conviction in Count 1 to avoid a double jeopardy
violation in light of the conviction in Count 6.
The state court
adjudicated Petitioner guilty of Counts 2, 4, and 6, and imposed
the following sentences:
•
Count 2:
30 years of imprisonment with a 25-year mandatory
minimum;
- 10 -
•
Count 4:
5 years of imprisonment, concurrent with Count 2;
and
•
Count 6:
life imprisonment, consecutive to Count 2.
(Ex. 1:171-86; Ex. 4:88-89).
Direct Appeal
Menard timely filed a direct appeal. (Ex. 5).
Represented
by counsel, Menard asserted three grounds for relief on direct
appeal:
(1) the trial court erred in denying Menard’s
motions for judgment of acquittal because the
State failed to disprove Menard acted in selfdefense;
(2)
the trial court erred in denying the
motion to dismiss because Menard has a lawful
right to be in the common area of the apartment
complex and possessed reasonable belief he
faced great bodily harm; and
(3) the trial court should have granted
Menard’s motion for judgment of acquittal on
trespassing and third degree murder charges
because he had a lawful right to be in the
apartment complex.
The State filed a brief in response. (Ex. 5).
The Second District
Court of Appeal per curiam affirmed Menard’s convictions and
sentences. Menard v. State, 110 So. 3d 455 (Fla. 2d DCA 2013).
(Ex. 6).
- 11 -
Rule 3.80 Motion
Represented by counsel, Menard filed a post-conviction motion
under
Florida
Rule
of
Criminal
Procedure
3.850,
raising
the
following grounds:
(1) the trial court imposed an illegal
sentence when it struck the manslaughter
verdict instead of the third-degree murder
verdict,
(2)
trial
counsel
provided
ineffective
assistance by failing to argue in his motion
to dismiss that Petitioner could have immunity
under section 776.012, Florida Statutes,
(3)
trial
counsel
provided
ineffective
assistance by failing to present Menard’s
testimony at the hearing on the motion to
dismiss,
(4)
trial
counsel
provided
ineffective
assistance by failing to call Phillip Markle
and Jacob Markham to testify at the hearing on
the motion to dismiss and at trial, and
(5)
trial
counsel
provided
ineffective
assistance by failing to present prior
statements by Phillip Markle and Jacob Markham
at the hearing on the motion to dismiss and at
trial. (Ex. 7:1417-37).
Menard later filed a supplemental motion, which provided further
argument but raised no new grounds for relief. (Ex. 7:3433-55).
Menard then moved to assert an additional ground for relief:
(6)
trial
counsel
provided
ineffective
assistance by failing to request a special
jury instruction on justifiable use of deadly
force.
(Ex. 7:3456-60).
The post-conviction court summarily denied grounds 1, 2, 4,
- 12 -
and 5, and denied grounds 3 and 6 after an evidentiary hearing.
(Ex. 7:4858-72).
The Second District Court of Appeal per curiam
affirmed the denial of Menard’s Rule 3.850 motion in Menard v.
State, 202 So. 3d 418 (Fla. 2d DCA 2016); (Ex. 9).
State Habeas Petition
Represented by counsel, Menard filed a Petition Alleging
Ineffective Assistance of Appellate Counsel with the District
Court of Appeals, asserting that on direct appeal appellate counsel
should have argued that the trial court erred by striking the
manslaughter verdict instead of the third-degree murder verdict.
(Ex. 10).
The State filed a Response. (Ex. 11).
The Second
District Court of Appeal summarily denied the petition. Menard v.
State, 206 So. 3d 706 (Fla. 2d DCA 2015).
III. Applicable Habeas Law
A.
AEDPA General Principles
The statutory authority of federal courts to issue habeas
corpus relief for persons in state custody is set forth in 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).
The AEDPA requires a state prisoner
seeking federal habeas relief to first “exhaus[t] the remedies
available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A).
If the state courts do not adjudicate the prisoner's federal claim
“on the merits,” a de novo standard of review applies in the
federal habeas proceeding; if the state courts do adjudicate the
- 13 -
claim on the merits, then the AEDPA mandates a deferential, rather
than de novo, review.
Kernan v. Hinojosa, 136 S. Ct. 1603, 1604
(2016).
This deferential standard is set forth in § Section 2254(d),
which provides:
“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim—”
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28
U.S.C.
§
2254(d).
This
standard
is
both
mandatory
and
intentionally difficult to satisfy. Sexton v. Beaudreaux, 585 U.S.
___, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415,
419 (2014).
“Clearly established federal law” consists of the governing
legal principles in the decisions of the United States Supreme
Court when the state court issued its decision. White, 572 U.S. at
419.
Habeas relief is appropriate only if the state court decision
was “contrary to, or an unreasonable application of,” that federal
law. 28 U.S.C. § 2254(d)(1).
A decision is “contrary to” clearly
- 14 -
established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent
to
a
new
context
where
it
should
not
apply
or
unreasonably refuses to extend that principle to a new context
where
it
should
apply.”
Bottoson,
Williams, 529 U.S. at 406.)
234
F.3d
at
531
(quoting
“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as
fair-minded jurists could disagree on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
See also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,
1301 (11th Cir. 2019) (“To justify federal habeas relief, the state
court’s decision must be so lacking in justification that there
was
an
error
.
.
.
beyond
any
- 15 -
possibility
for
fairminded
disagreement.”)(internal quotation marks omitted).
When reviewing a claim under § 2254(d), any “determination of
a factual issue made by a State court shall be presumed to be
correct[,]” and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]
state-court
factual
determination
is
not
unreasonable
merely
because the federal habeas court would have reached a different
conclusion in the first instance.”) (quoting Wood v. Allen, 558
U.S. 290, 293 (2010)). See also Morrow v. Warden, 886 F.3d 1138,
1146 (11th Cir. 2018) (the court must presume that the State
court’s determination of a factual issue is correct, and petitioner
must rebut presumption by clear and convincing evidence).
As discussed earlier, for the deferential § 2254(d) standard
to apply there must have been an “adjudication on the merits” in
state court.
An adjudication on the merits does not require that
there be an opinion from the state court explaining the state
court's reasoning. Harrington v. Richter, 562 U.S. 86, 98 (2011).
“When a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Richter, 562 U.S. at 99.
“The presumption may be overcome when
there is reason to think some other explanation for the state
- 16 -
court's decision is more likely.” Richter, 562 U.S. at 99–100.
This presumption applies whether the state court fails to discuss
all of the claims or discusses some claims but not others. Johnson
v. Williams, 568 U.S. 289, 293, 298-301 (2013).
While such a decision is an “adjudication on the merits,” the
federal habeas court must still determine the state court's reasons
for its decision in order to apply the deferential standard.
When
the relevant state-court decision on the merits is not accompanied
by its reasons,
the federal court should “look through” the
unexplained decision to the last related
state-court decision that does provide a
relevant rationale. It should then presume
that the unexplained decision adopted the same
reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on
different grounds than the lower state court's
decision, such as alternative grounds for
affirmance that were briefed or argued to the
state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
The federal
court “looks through” the silent state court decision “for a
specific and narrow purpose—to identify the grounds for the higher
court's decision, as AEDPA directs us to do.”
Id. 138 S. Ct. at
1196.
When, as here, there is no reasoned statecourt decision on the merits, the federal
court “must determine what arguments or
theories ... could have supported the state
court's decision; and then it must ask whether
- 17 -
it is possible fairminded jurists could
disagree that those arguments or theories are
inconsistent with the holding in a prior
decision of this Court.” Harrington v.
Richter, 562 U.S. 86, 102, 131 S. Ct. 770, 178
L. Ed. 2d 624 (2011). If such disagreement is
possible, then the petitioner's claim must be
denied. Ibid.
Sexton, 138 S. Ct. at 2558.
B.
Exhaustion and Procedural Default
The
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted all means of relief under state law.
Exhaustion of
state remedies requires that the state prisoner “fairly presen[t]
federal claims to the state courts in order to give the State the
opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365
(1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). See
also Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th
Cir. 2012)(failure to exhaust occurs “when a petitioner has not
fairly presented every issue raised in his federal petition to the
state’s highest court, either on direct appeal or on collateral
review.”).
The petitioner must apprise the state court of the
federal constitutional issue, not just the underlying facts of the
claim or a similar state law claim.
F.3d 732 (11th Cir. 1998).
- 18 -
Snowden v. Singletary, 135
In
addition,
a
federal
habeas
court
is
precluded
from
considering claims which are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would have to
present his claims to meet the exhaustion requirement would now
find the claims procedurally barred, there is a procedural default
for federal habeas purposes regardless of the decision of the last
state court to which the petitioner actually presented his claims).
Finally, a federal court must dismiss those claims or portions
of claims denied on adequate and independent procedural grounds
under state law. Coleman, 501 U.S. at 750.
If a petitioner
attempts to raise a claim in a manner not permitted by state
procedural rules, he is barred from pursuing the same claim in
federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.
1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim
in
state
court
and
actual
prejudice
from
the
alleged
constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010).
To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
- 19 -
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the fundamental miscarriage of
justice,
only
occurs
in
an
extraordinary
case,
where
a
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Bousley v. United States, 523 U.S. 614, 623
To meet this standard, a petitioner must “show that it
is more likely than not that no reasonable juror would have
convicted him” of the underlying offense. Schlup v. Delo, 513 U.S.
298, 327 (1995).
“To be credible, a claim of actual innocence
must be based on [new] reliable evidence not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
C.
Ineffective Assistance of Trial and Appellate Counsel
In Strickland v. Washington, the Supreme Court established a
two-part test for determining whether a convicted person may have
relief claiming his counsel rendered ineffective assistance. 466
U.S.
668,
687-88
(1984).
A
petitioner
must
establish
that
counsel’s performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
- 20 -
prejudiced
standard
the
of
defense.
review
Id.
that
This
gives
is
both
a
the
“doubly
state
deferential”
court
and
the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct.
at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The
Strickland
standard
applies
to
claims
of
ineffective
assistance of appellate counsel. Corales-Carranza v. Sec’y, Fla.
Dep’t of Corr., 786 F. App’x 053, 957 (11th Cir. 2019); Smith v.
Robbins, 528 U.S. 259, 285 (2000).
Appellate counsel need not
raise every nonfrivolous claim on appeal. See Jones v. Barnes, 463
U.S. 745 (1983); see also Eagle v. Linahan, 279 F.3d 926, 940 (11th
Cir.
2001)(“[T]he
Sixth
Amendment
does
not
require
appellate
attorneys to press every non-frivolous issue that the client
requests
to
be
raised
on
appeal,
provided
that
counsel
uses
professional judgment in deciding not to raise those issues.”
(citations omitted)).
The Jones Court underscored the importance
of sorting out weaker arguments for stronger ones.
Most cases present only one, two, or three significant
questions . . . . Usually, . . . if you cannot win on a
few major points, the others are not likely to help, and
to attempt to deal with a great many in the limited
number of pages allowed for briefs will mean that none
may receive adequate attention. The effect of adding
weaker arguments will be to dilute the force of the
stronger ones.
Jones v. Barnes, 463 U.S. at 752 (citations omitted).
The Court recognized it is possible to bring a Strickland
claim based on appellate counsel's failure to raise a particular
- 21 -
claim, but demonstrating incompetence is difficult. Robbins, 528
U.S. at 288.
“‘Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective
assistance of counsel be overcome.’” Id. (citation omitted).
demonstrate
prejudice,
the
petitioner
must
demonstrate
To
a
reasonable probability that, but for his counsel's failure to brief
the particular issue, petitioner would have prevailed on the issue
on appeal. Id. at 285.
If petitioner demonstrates that the omitted
claim would have had a reasonable probability of success on appeal,
then appellate counsel's performance resulted in prejudice. Heath
v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991).
IV.
Analysis
A. Ground One:
Illegal sentence when trial court
vacated the manslaughter verdict instead of the thirddegree murder verdict.
Menard claims the trial court imposed an illegal sentence
when it vacated the jury’s manslaughter verdict instead of vacating
the third-degree murder verdict. Doc. #1 at 5.
Respondent seeks
dismissal of this ground as procedurally barred. Doc. #16 at 1314.
(1) Procedural Bar
Respondent correctly points out that Menard did not raise
this claim on direct appeal in state court. See Ex. 5.
Instead,
Menard raised a similar claim as ground one in his Rule 3.850
motion,
in
which
he
complained
- 22 -
the
state
court
improperly
determined which verdict to vacate under Florida law, citing to
and arguing only Florida caselaw. (Ex. 7 at 1428-29.)
The post-
conviction court found this claim was not cognizable in a Rule
3.850 proceeding, citing to Watts v. State, 82 So. 3d 1215, 1216
n. 1 (Fla. 2d DCA 2012) and Johnson v. State,539 So. 2d 206 (Fla.
1992). (Ex. 7:4535-36).
The post-conviction court further held
“a Rule 3.850 motion cannot be used to provide a second appeal or
an alternative to a direct appeal.”
488 So. 530 (Fla. 1986)).
(Id. citing Straight v. State,
The Florida appellate court per curiam
affirmed the denial of the Rule 3.850 motion.
Federal review of a habeas petitioner’s claim is barred if
the last state court to examine the claim states explicitly that
the claim is barred because the petitioner failed to follow state
procedural rules, and that procedural bar provides an adequate and
independent state ground for denying relief.
A state court’s procedural ruling constitutes
an independent and adequate ground if: (1) the
last state court to render a judgment in the
case clearly and expressly states that it is
relying on state procedural rules to resolve
the federal claim without reaching the merits
of the claim; (2) the state court’s decision
rests solidly on state law grounds and is not
intertwined with an interpretation of federal
law; and (3) the state procedural rule is
adequate,
meaning
it
was
not
applied
arbitrarily or in an unprecedented way.
Smith v. Warden, Macon State Prison, No. 18-13801, 2020 WL 615034,
at *6 (11th Cir. Feb. 10, 2020); see also Caniff v. Moore, 269
- 23 -
F.3d 1245, 1247 (11th Cir. 2001)(“[C]laims that have been held to
be procedurally defaulted under state law cannot be addresses by
federal courts.”).
Here, the state court rejected Menard’s claim because he had
failed to assert it on direct appeal and had improperly sought
review in a collateral Rule 3.850 motion.
This ruling was not
intermixed with the merits of the claim, and Menard does not submit
the state court’s ruling was arbitrary.
Nor does Menard allege,
yet alone show, cause and prejudice or a fundamental miscarriage
of justice to overcome the procedural default. Coleman v. Thompson,
501 U.S. at 750; Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
the
record
establishes
that
Ground
One
is
Thus,
unexhausted
and
procedurally barred.
(2) Double Jeopardy
In his Reply, Menard contends that the claim is not one of
trial court error but is premised on the double jeopardy provision
of the Fifth Amendment. See Ex. 7 at 4522, ¶ 1.
This is not the
way the issue was presented in state court, since a double jeopardy
claim may be raised for the first time in a Rule 3.850 motion.
Gammage v. State, 277 So. 3d 735, 738-39 (Fla. 2d DCA 2019).
Even
if phrased in terms of a violation of the double jeopardy clause,
however, petitioner has shown no constitutional error.
“The Double Jeopardy Clause of the Fifth Amendment provides
that no person shall be ‘subject for the same offence to be twice
- 24 -
put in jeopardy of life or limb.’” Jones v. Thomas, 491 U.S. 376,
380 (1989) (quoting U.S. Const., amend. V). In addition, the Double
Jeopardy Clause guarantees against “multiple punishments for the
same offense.”
Cir. 2009).
United States v. Bobb, 577 F.3d 1366, 1371 (11th
In the context of multiple punishments, the purpose
of double jeopardy is simply to ensure that the total punishment
does not exceed that authorized by the legislature.
Jones v.
Thomas, 491 U.S. 376, 381 (1989)); Missouri v. Hunter, 459 U.S.
359, 366 (1983) (“[T]he Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment
than the legislature intended.”).
Here, Florida law is clear that there cannot be multiple
punishments for the killing of a single person. Houser v. State,
474 So. 2d 1193, 1197 (Fla. 1985)(“Florida courts have repeatedly
recognized that the legislature did not intend to punish a single
homicide under two different statutes.”)
Thus, the trial court
clearly had to vacate one of the jury verdicts.
Florida law is
also clear that vacating the verdict of the lesser is proper and
does not violate double jeopardy.
Under the Fifth Amendment, where double jeopardy prohibits
multiple
punishment,
congressional
intent
“the
is
only
for
the
remedy
consistent
District
Court,
with
the
where
the
sentencing responsibility resides, to exercise its discretion to
vacate one of the underlying convictions.”
- 25 -
Ball v. United States,
470 U.S. 856, 864 (1985).
Thus, under the Fifth Amendment the
trial court has the discretionary authority to sentence a defendant
on either count, regardless of which is a lesser offense.
Given
the jury’s verdict, there was no violation of Fifth Amendment
double jeopardy by imposing sentence on the third-degree murder
conviction
and
vacating
the
manslaughter
verdict.
In
the
alternative, Ground One is denied as without merit.
B. Ground Two:
Ineffective assistance of appellate
counsel for failing to argue the trial court erred by
vacating the manslaughter instead of the third-degree
murder conviction.
Menard
claims
appellate
counsel
was
constitutionally
ineffective when he failed to assert on direct appeal that the
trial court erred by vacating the manslaughter verdict instead of
the third-degree murder verdict. Doc. #1 at 7.
Menard argues that
appellate counsel failed to raise this issue on direct appeal
despite “this critical issue being flagged by the state trial court
for appeal.”
Doc. #4 at 25.
Menard submits that had this issue
been raised on direct appeal, he would have prevailed and his
conviction for third degree murder would have been vacated and he
would have been convicted of manslaughter. Id.
Because Menard was
sentenced to life on the third degree murder conviction and a
conviction for manslaughter carries a maximum sentence of 30 years,
Menard claims he suffered prejudice due to appellate counsel’s
deficiency. Id.
- 26 -
Menard raised this same ground in his state habeas petition.
(Ex. 10).
The State filed a response. (Ex. 11).
The Second
District Court of Appeal denied the petition without opinion. (Ex.
12).
Respondent first argues this ground is procedurally barred
because Menard did not “invoke federal constitutional rights while
asserting this claim.” Doc. #16 at 15.
The Court disagrees.
Menard raised an ineffective assistance of appellate counsel claim
to the Second District Court of Appeal citing to Strickland as the
governing law. (Ex. 10 at 6).
constitutional right.
Thus, Menard did invoke a federal
The Court finds that this ground is not
procedurally barred, and so turns to the merits of the claim.
Both Menard’s state petition (Ex. 10) and the State’s response
(Ex.
11)
argued
the
application
convictions violate double jeopardy.
of
Florida
law
when
dual
Both pleadings agreed that
Florida law requires the lesser offense to be stricken.
State v.
Barton, 523 So. 2d 152, 153 (Fla. 1988). (See Ex. 10 at 7, Ex. 11
at 3).
Both acknowledged under Florida law the lesser offense is
determined by the elements of each offense. Pizzo v. State, 945
So. 2d 1203, 1206 (Fla. 2006). (See Ex. 10 at 8, Ex. 11 at 3).
At the time of Menard’s conviction, manslaughter was defined
as “[t]he killing of a human being by the act, procurement, or
culpable negligence of another, without lawful justification.” §
782.07, Fla. Stat. (2010).
The elements of manslaughter are (1)
- 27 -
death of the victim and (2) causation of the victim’s death by the
defendant through and intentional act, intentional procurement of
an act, or culpable negligence. Fla. Std. Jury Instr. (Crim.) 7.7.
Third degree felony murder is defined as “[t]he unlawful killing
of human being, when perpetrated without any design to affect
death, by a person engaged in the perpetration of, or in the
attempt to perpetrate, an [unspecified felony].” § 782.04(4), Fla.
Stat. (2010).
The elements of third degree felony murder are (1)
death of the victim and (2) causation of the victim’s death or
accomplice during the commission, attempted commission, or escape
from a commission or attempted commission of a felony, and (3)
killing of the victim by the defendant or an accomplice. Fla. Std.
Jury Instr. (Crim.) 7.7.
The State in its response pointed out the elements of the
manslaughter offense were subsumed within the third degree murder
offense.
Unlike the manslaughter offense, third degree murder
required the additional element of the commission of a felony.
Upon review of the parties’ respective pleadings, the Second
District Court of Appeal denied Menard’s petition.
The appellate
court’s silent denial constitutes an “adjudication” for § 2254.
Harrington, 562 U.S. 98-99.
Thus, the decision is entitled to
deference under § 2254(d) because “the summary nature of a state
court’s decision does not lessen the deference that is due.”
Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002); see also
- 28 -
Richter, 562 U.S. at 99.
The appellate court’s interpretation of
Florida law binds this Court.
Mullaney v. Wilbur, 421 U.S. 684,
691 (1975)(holding “state courts are the ultimate expositors of
state law.”).
Menard has not demonstrated that the state court’s rejection
of this ground was contrary to clearly established federal law nor
based upon an unreasonable determination of the facts.
is denied.
Ground Two
28 U.S.C. § 2254(d).
C. Ground Three: Ineffective assistance of counsel for
failing to argue Menard was entitled to immunity under
Florida Statute Section 776.012(1).
Menard claims trial counsel was ineffective because, while he
pled immunity under Fla. Stat. § 776.013(3), he failed to also
assert immunity under Fla. Stat. § 776.012(1). Doc. #1 at 8.
Menard argues because his alleged trespassing would not have
precluded him for being granted immunity under § 776.012(1), trial
counsel was ineffective in failing to assert this alternative
theory of immunity.
Id.
Respondent argues this ground is without merit and refuted by
the record.
Doc. #16 at 20-21.
Respondent asserts trial counsel
did advance an argument under both § 776.013 and § 776.012, and
the trial court considered and rejected both arguments.
Id.
Menard raised this ground as ground two in his Rule 3.850
motion. (Ex. 7 at 3447-48).
The post-conviction court summarily
denied this claim, stating:
- 29 -
In Ground Two Defendant asserts that trial counsel was
ineffective “when he failed to argue to the trial Court
that Mr. Menard was entitled to immunity under Florida
Statute 776.012(1).” Defendant further assets that “had
trial counsel pursued the alternative theory of immunity
available under section 776.012(1), Mr. Menard’s alleged
trespassing would not have precluded the trail court
from granting immunity.”
Initially, a review of the record reveals that during
the hearing on Defendant’s Motion to Dismiss, trial
counsel did specifically cite § 776.012(1) both in his
opening statement to the Court, and his closing argument
to the Court. (Def. Mot. Dismiss. 6, 113-18).
Furthermore, a review of the record reveals that after
the Court determined that immunity under § 776.013 did
not apply because the Defendant was trespassing, it went
on to consider whether the Defendant was entitled to
immunity under § 776.012
regardless of trespassing.
(Def. Mot. To Dismiss. 135).
Despite trial counsel’s
efforts to urge the Court to grant immunity under §
776.012(1) and § 776.013, the Court ultimately found
that the Defendant was not entitled to immunity because
of § 776.041, Florida Statutes. (Def. Mot. To Dismiss.
135). Specifically, the Court found that Defendant was
the party who initially provoked the sue of force under
§§ 776.012(1), 776.013, 776.013, or 776.032.
See §
776.041, Florida Statutes, see also Darling v. State, 81
So. 3d 574 (Fla. 3d DCA 2012)(“justification for using
deadly force in self defense, which includes the ‘stand
your ground’ defense, does not apply to a person who
provokes the attack.”)(citing § 776.041(2), Florida
Statutes)).
Therefore, the Court finds that Defendant’s claim is
refuted by the record because trial counsel specifically
argued § 776.012(1) as a basis for immunity in this case.
(Def. Mot. Dismiss, 6, 113-18). Furthermore, the Court
finds that Defendant’s claim is meritless as the Court’s
reliance on § 776.041 in denying the Defendant’s Motion
to Dismiss precluded any finding of immunity under the
statute. Accordingly, ground Two is denied.
(Ex. 7 at 4868-69, ¶¶ 5-8).
- 30 -
Menard argues that the state court’s ruling is unreasonable
under Strickland and based on an unreasonable determination of the
facts, given the evidence. Doc. #4 at 32.
counsel
“never
argued”
but
references” to § 776.012. Id.
only
Menard suggests that
made
“two
insignificant
Menard also argues that the Court
should review this ground de novo because the state court “never
adjudicated
the
claim
on
the
merits”
or
afforded
Menard
an
evidentiary hearing on this ground. Id.
Menard’s request for de novo review is unavailing. Florida’s
Second
District
Court
of
Appeal
affirmed
court’s rejection of ground two. (Ex. 9).
the
post-conviction
The silent affirmance
of the post-conviction court’s ruling is entitled to deference.
As discussed earlier, under a § 2254(d)(2) inquiry, the federal
court “looks through” the Florida appellate court’s per curiam
summary denial and evaluates the state postconviction court’s
reasoned decision denying Petitioner relief. Wilson v. Sellers, __
U.S. __, 138 S. Ct. 1188, 1192 (2018).
The Court then presumes
the unexplained affirmance adopted the same reasoning. Id.
Here the state court found the record refuted Menard’s claim.
A state court’s findings of fact are presumed correct unless
petitioner rebuts them by clear and convincing evidence.
U.S.C. § 2254(e)(1).
28
“The Supreme Court has found state factual
findings unreasonable under § 2254(d)(2) when the direction of the
evidence,
viewed
cumulatively,
was
- 31 -
‘too
powerful
to
conclude
anything but [the petitioner's factual claim].’”
Landers v.
Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1293–94 (11th Cir. 2015)
(citing Miller–El v. Dretke (Miller–El II), 545 U.S. 231, 265
(2005)).
When a finding of fact is challenged on federal habeas,
the standard of review is doubly deferential: “[t]he ‘unreasonable
application’ inquiry requires the state court decision to be more
than incorrect or erroneous; it must be objectively unreasonable.”
Chandler v. Crosby, 454 F. Supp. 2d 1137, 1146 (M.D. Fla. 2006)
(citing Lockyer v. Andrade, 538 U.S. 63, 75–77 (2003)).
But
“deference does not imply abandonment or abdication of judicial
review” and “does not by definition preclude relief.”
Brumfiled
v. Cain, __ U.S. __, 135 S. Ct. 2269, 2277 (2015) (quoting MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
The Court finds the record supports the state court’s finding
that trial counsel advanced an argument that Menard could have
immunity under § 776.012(1) and the trial court considered but
rejected the argument.
Although the motion to dismiss did not
refer to § 776.012(1) (see Ex. 1 at 49-50), the transcript from
the hearing clearly reflects trial counsel asserted immunity under
both § 776.013(1) and § 776.012(1) at the hearing. (Ex. 2).
After
the State provided the court with a copy of § 776.013 at the
inception of the hearing, defense counsel submitted copies of
776.012(1) and § 776.032 to the court. (Id. at 203).
§
Trial counsel
further repeatedly argued throughout the hearing that Menard was
- 32 -
justified to use deadly force because he reasonably believed such
force was necessary to prevent his imminent death or great bodily
harm.
(See generally Ex. 2).
During his summation argument,
defense counsel again specifically directed the court to § 776.012
and argued Menard “had a right to deploy deadly force because Mr.
Standifer was physically attacking him while Mr. Morales had an
Uzi pointed at him.” (Id. at 318).
Denying the motion, the court first pointed out the evidence
suggested Menard did not have a legal right to be at the Brittany
Bay Apartments. (Id. at 332).
The court then considered whether
Menard was justified to use reasonable force to protect himself
believing he was imminent harm or great bodily injury.
the
only
force
used
against
Menard
“was
a
push,”
Finding
the
court
determined the evidence was “insufficient” to “lead a reasonable
person to believe that there was imminent danger to himself or
another.” (Id.).
Further, the court determined Menard was not
entitled to immunity because he was aggressor. (Id.).
This ground fails under both prongs of Strickland.
Menard
cannot demonstrate ineffective assistance of counsel because the
record refutes Menard’s claim that trial counsel did not argue
immunity based on § 776.012.
And, Menard cannot demonstrate
prejudice because the trial court specifically found Menard the
aggressor, so he is not be entitled to immunity under § 776.012.
Menard has not demonstrated that state court's adjudication of
- 33 -
this claim was contrary to clearly established federal law nor
based upon an unreasonable determination of the facts.
Three is denied.
Ground
28 U.S.C. § 2254(d).
D. Ground Four: Ineffective assistance of counsel for
advising Menard not to testify at the Stand Your
Ground hearing.
Menard states he was willing and able to testify at the
pretrial hearing held on his motion to dismiss but counsel advised
him that his testimony was unnecessary. Doc. #1 at 10.
claim
that,
contrary
to
counsel’s
advice,
his
Menard
testimony
was
essential to establish he reasonably believed his use of force was
necessary to prevent imminent death or great bodily harm to himself
and suggests the outcome of the hearing would have been different
had he testified. Id.
Menard raised this ground as ground three in his Rule 3.850
motion. (Ex. 7 at 3449-50).
The post-conviction court granted
Menard an evidentiary hearing on this ground. (Ex. 7 at 4537).
At the evidentiary hearing, defense counsel testified that he
never told Menard it was “unnecessary for him to testify.”
Counsel
stated that for strategic reasons he advised Menard not to testify
at the motion to dismiss and Menard followed his advice.
Defense
counsel provided this advice because (1) he believed Menard’s
reasonable
belief
of
fear
could
be
established
through
the
testimony of other witnesses, (2) testimony regarding unlawful
activity that occurred before the shooting would have prevented
- 34 -
him from getting immunity, (3) testimony regarding Menard being
the provoker would have prevented him from getting immunity, and
(4)
Menard,
impeached.
by
testifying,
would
subject
himself
to
being
Counsel also stated that the defense strategy may
change between the hearing and trial, and he was concerned Menard’s
testimony
testimony.
at
the
hearing
could
undermine
his
anticipated
Menard did eventually testify at trial.
Counsel
believed he could adequately prove the elements to show Menard was
justified in using deadly force through the three witnesses he
called at the hearing.
In hindsight he admitted he questioned his
strategy, but at the time he believed it was the correct strategy.
Menard did not insist on testifying, and if Menard told counsel he
wanted to testify, counsel would have let him.
Menard testified at the post-trial hearing that he wanted to
testify at the motion hearing but followed counsel’s advice not to
testify.
Menard claims counsel told him “it wasn’t necessary” for
him testify, and asserts he argued with counsel about testifying.
The post-conviction court denied this ground in a detailed
opinion:
In Ground Three Defendant asserts that trial counsel
“provided ineffective assistance of counsel when he
advised Mr. Menard that it was not necessary for him to
testify at the stand your ground hearing.”
Defendant
further argues that “Mr. Menard’s testimony was
essential to establish that he reasonably believed that
his use of force was necessary to prevent imminent death
or great bodily harm to himself,” and that “had Mr.
Menard not been advised that his testimony was
- 35 -
unnecessary at the stand your ground hearing, he would
have testified, as he did at trial.”
At the evidentiary hearing, Defendant testified that he
wanted to testify at the stand your ground hearing, but
he was advised by trial counsel that his testimony was
not necessary.
Defendant stated that trial counsel
advised him the three witnesses he presented at the
hearing were sufficient. Defendant also testified that
trial counsel was concerned with the upcoming trial, and
was not very confident in the success of the motion.
Defendant provided the testimony he would have given if
he had testified at the stand your ground hearing. The
testimony outlined his perception of the vents which
took place on January 1, 2010.
On cross examination, Defendant was asked why his
testimony differed at the evidentiary hearing compared
to trial.
Specifically, at trial Defendant testified
that he originally went to the Brittany Bay apartments
to see Nattie Montes, but stopped at a different
apartment in Brittany bay so that the other occupants in
his car “could hang out with some friends.” (TT.990-93).
However, at the evidentiary hearing, Defendant testified
that he went to the Britany Bay apartments to confront
the parents of an individual who robbed his friends
earlier that day. The Defendant stated that the reason
for the discrepancy was because he is currently under
oath and swore to tell the truth. Defendant was then
asked “didn’t you swear to tell the truth when you
testified at trial,” and he replied, “no one else did.”
At the evidentiary hearing, trial counsel testified that
he researched the law, reviewed depositions, and weighed
the probability of success in deciding whether or not to
advise Defendant to testify at the stand your ground
hearing.
Trial counsel; testified he then discussed
with the Defendant the risks associated with testifying
as the stand your ground hearing, and that the Defendant
agreed with his advice.
Trial counsel explained that the strategy for stand your
ground hearing and trial was that the Defendant was
invited to a party at the Brittany Bay apartments through
a friend, and that he thought he had a legal right to be
there.
Trial counsel testified that his main concern
was that if the Defendant testified as the stand your
- 36 -
ground hearing, and the defense strategy late changed,
the Defendant’s statements at the stand your ground
hearing
could
be
used
against
him
at
trial.
Specifically, trial counsel testified that there were
two potential state witnesses who if granted immunity by
the State, would have testified that Defendant went to
the Brittany Bay apartments to confront individuals
involved in an alleged robbery. Trial counsel explained
there was a genuine concern that the witnesses would
become available after the stand your ground hearing,
and would contradict Defendant’s stand your ground
testimony.
Trial counsel asserted that based upon the probability
of success, and the potential state witnesses, he
determined that strategically he should advise his
client that it was not in his best interest to testify
as the stand your ground hearing.
However, trial
counsel testified that if Defendant had wanted to
testify, he would have allowed him.
The Court finds
that the testimony of the Defendant is not credible due
to conflicting testimony at trial and the evidentiary
hearing. The Court further finds the testimony of trial
counsel credible, and that his decision to advise
Defendant not to testify was strategic.
Therefor,
Defendant has failed to demonstrate an entitlement to
the relief he requested, Accordingly, Ground Three is
denied.
(Ex. 7 at 4860-62, ¶¶ 6-11).
The
Second
District
Court
of
Appeal
affirmed
conviction court’s rejection of ground three. (Ex. 9).
the
post-
The silent
affirmance of the post-conviction court’s ruling is entitled to
deference, and this Court “looks through” the appellate court’s
per curiam summary denial and presumes the unexplained affirmance
adopted
the
state
postconviction
Wilson, 138 S. Ct. at 1192.
- 37 -
court’s
reasoned
decision.
A defendant's right to testify at a criminal proceeding is a
fundamental and personal right that cannot be waived by defense
counsel. See United States v. Teague, 953 F.2d 1525, 1532 (11th
Cir. 1992).
In Teague, the Eleventh Circuit held that it is
defense counsel's responsibility to advise the defendant of this
right and the strategic implications and “that the appropriate
vehicle for claims that the defendant's right to testify was
violated by defense counsel is a claim of ineffective assistance
[under Strickland].” Id. at 1534.
The Teague court reasoned that
an attorney's performance would be deficient under the first prong
of the Strickland test if counsel refused to accept the defendant's
decision to testify and would not call him to the stand or if
defense counsel never informed the defendant of the right to
testify and that the ultimate decision belonged to the defendant.
Id.
In Teague, the defendant's ineffective assistance of counsel
claim was rejected because the trial court found that counsel had
advised the defendant of his right to testify, had advised him he
should not exercise that right, and the defendant did not protest.
Teague, 953 F.2d at 1535.
Menard’s Ground Four suffers from the same defect as the
ineffective assistance claim in Teague; specifically, it fails
because counsel informed
Menard of his right to testify, advised
him against doing so, and Menard accepted counsel’s strategic
advice.
Counsel’s strategic choices were made after a thorough
- 38 -
investigation of both the law and facts.
Reasoned strategic
choices by counsel are “virtually unchallengeable.” Strickland,
466 U.S. at 690.
The post-conviction court’s determination that counsel was
more credible and had explained to Menard that he had a right to
testify are factual determinations that Menard must rebut by clear
and convincing evidence before he may have relief on this claim.
See Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999)
(questions of credibility and demeanor of a witness is a question
of fact); 28 U.S.C. § 2254(e)(1)(a determination of a factual issue
made by a State court shall be presumed correct unless rebutted by
clear and convincing evidence); Gore v. Sec'y, Dep't of Corr., 492
F.3d
1273,
reviewing
1300
court
(11th
also
Cir.
gives
2007)
a
(recognizing
certain
amount
that
of
while
deference
a
to
credibility determinations, that deference is heightened on habeas
review).
Menard offers nothing to rebut the state court’s factual
finding that counsel was more credible or informed him of his right
to testify.
In fact, Menard concedes counsel advised him that he
could testify but recommended against him testifying.
Upon review
of the hearing transcript, the Court concludes that reasonably
competent counsel would have advised Menard against testifying
under the circumstances.
Menard has not demonstrated counsel was
constitutionally deficient. The Court finds the state courts’
- 39 -
rejection of this claim was neither contrary to clearly established
federal law nor based upon an unreasonable determination of the
facts.
Ground Four is denied.
28 U.S.C. § 2254(d).
Additionally, Menard’s testimony at the hearing would have
done no good.
Menard did testify at trial and was unable to
establish a basis for a stand your ground defense.
E. Ground Five: Ineffective assistance of counsel for
failing to call Phillip Markle and Jacob Markham as
witnesses at the stand your ground hearing and trial.
Trial counsel did not call Phillip Markel and Jacob Markham
as witnesses at the stand your ground hearing or at trial because
he was told by their respective attorneys they would not testify
and would plead the Fifth Amendment unless the prosecutor granted
them immunity.
Doc. #1 at 12.
Trial counsel also advised Menard
that the State threatened to pursue criminal charges against Markle
and Markham if they testified. Id.
Menard claims counsel should
have called them as witnesses “to ask questions that would not
lead them to make an incriminating response.”
Id.
In his Memorandum, Menard acknowledges he “did not present
this ground to the state appellate court” and acknowledges this
“ground is not properly preserved for habeas review.” Doc. #4 at
36.
Menard “respectfully withdraws Ground 5 from this Court’s
consideration.”
Id.
Consequently,
voluntarily dismissed.
- 40 -
Ground
Five
is
deemed
F. Ground Six:
Ineffective assistance of counsel for
failing to present Phillip Markle and Jacob Markham’s
prior statements against penal interest at the stand
your ground heading and trial.
Both Philip Markle and Jacob Markham, who were present during
the shooting, provided written statements to law enforcement. Doc.
#4 at 34.
Menard claims their statements supported his stand your
ground defense and were admissible as an exception to hearsay under
§ 90.804(2)(c), Fla. Stat. Id.
Menard claims that counsel decided
not to call either Markle or Markham at the hearing or trial
because both had asserted their Fifth Amendment rights.
Menard
asserts counsel was ineffective because he should have introduced
Markle and Markham’s prior statements to law enforcement at the
stand your ground hearing and trial.
Menard raised this ground
as ground five in his Rule 3.850 motion. (Ex. 7 at 3452-53).
Respondent
submits
the
state
court
properly
applied
Strickland in denying this ground because the state court found
both statements undermined Menard’s defense.
Doc. #16 at 24-25.
In summarily denying the ground, the post-conviction court held:
In ground Five Defendant asserts that trial counsel was
ineffective
for
failing
to
introduce
the
sworn
statements of Phillip Markel and Jacob Markham in lieu
of their live testimony at the Defendant’s motion to
dismiss.
A review of the documents demonstrates that
the statements would have undermined the Defendant’s
claim of immunity. (see attached sworn statements).
Specifically, both statements indicate that the reason
the Defendant illegally entered Brittany Bay Phase I on
January 1, 2010 was to avenge an alleged attack that
happened earlier that day.
The statements would have
shown that the Defendant illegally entered Brittany Bay
- 41 -
Phase I while armed in order to provoke a confrontation
with the victims. See § 776.041, Florida Statutes, see
also Darling v. State, 81 So. 3d 574 (Fla. 3d DCA
2012)(“justification for using deadly force in selfdefense, which includes the ‘stand your ground’ defense,
does
not
apply
to
a
person
who
provokes
the
attack.”)(citing § 761.041(2), Florida Statutes)).
Accordingly, Ground Five is denied.
(Ex. 7 at 4870, ¶ 13).
Florida’s Second District Court of Appeal’s
silent affirmance of the post-conviction court’s ruling (Ex. 9) is
entitled
to
postconviction
relief.
deference
court’s
and
this
reasoned
Court
considers
decision
denying
the
state
Petitioner
Wilson, 138 S. Ct. at 1192.
The record reflects both Markle and Markham were unavailable
to testify and invoked the Fifth Amendment during their deposition
noticed by Menard. (Ex. 7 at 4869-70; 4610-31).
Markham had given post-Miranda statements.
Both Markle and
(Ex. 7 at 1440-1475).
The statements confirmed that earlier in the day Markle and Markham
were
at
Brittany
Bay
apartments
and
encountered
Standifer,
Fleitas, Morales and Couture, and that Markle was placed in a
headlock and had the money from his wallet stolen.
Markle and
Markham admitted that they had told Menard about the robbery, and
they decided to go back to the Brittany Bay apartments to confront
the individuals and get their money back.
apartment
complex
and
drove
directly
believed the four individuals lived.
to
Menard drove to the
the
area
where
they
Markle claimed an argument
broke out and one kid pulled an Uzi so he left but Menard “stayed
- 42 -
there, and I was like Matt let’s go, and he’s like and he stayed
there posted up, and then the black kid came up pushed him and I
saw Matt reaching and I was like no.” Markham and Markle both
claimed they did not know Menard had a gun.
Markle also stated
that after Menard was pushed to the ground he pulled a gun from
his waist and shot.
Statements taken by police in the course of interrogation in
a criminal investigation are considered testimonial evidence and
constitute hearsay.
Crawford v. Washington, 541 U.S. 36, 52
(2004). Menard argues the statements would have been admitted
because they qualify under the hearsay exception for declarations
against interests under Fla. Stat. § 90.804(c)(2). 6
The state
court did not address the admissibility of the two statements or
make
any
findings
inculpatory.
whether
either
statement
was
truly
self-
This is a “fact-intensive inquiry.” Williamson v.
U.S. 512 U.S. 504, 604 (1994).
Assuming, without deciding that
the testimonial statements were admissible, the record supports
6
Statement against interest.--A statement which, at the time of
its making, was so far contrary to the declarant's pecuniary or
proprietary interest or tended to subject the declarant to
liability or to render invalid a claim by the declarant against
another, so that a person in the declarant's position would not
have made the statement unless he or she believed it to be true.
A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is inadmissible, unless
corroborating circumstances show the trustworthiness of the
statement.
Fla. Stat. Ann. § 90.804 (West).
- 43 -
the state court’s findings that counsel was not deficient for not
introducing the statements because they would have undermined
Menard’s defense.
Whether to introduce a witness’s testimony is
a question of trial strategy.
See Gonzalez v. United States, 553
U.S. 242, 249 (2008) (“Numerous choices affecting the conduct of
the trial, including the objections to make, the witnesses to call,
and
the
arguments
to
advance,
depend
not
only
upon
what
is
permissible under the rules of evidence and procedure but also
upon tactical considerations of the moment and the larger strategic
plan for the trial.”).
While portions of the statements may have
assisted Menard’s defense (confirmation that an individual had an
Uzi and Menard was pushed), the statements also contained damaging
information on the pivotal issue concerning Menard’s justifiable
use of deadly force.
The state court’s finding that there were
sufficient strategic reasons for counsel not to introduce the
statements is entitled to deference and is not one of those “rarer”
situations
which
merit
federal
habeas
relief.
See
Nance
v.
Warden, Georgia Diagnostic Prison, 922 F.3d 1298, 13031 (11th Cir.
2019).
prong.
1285
Thus,
Menard
cannot
satisfy
Strickland’s
performance
See Castillo v. Sec’y, Fla. Dep’t of Corr., 722 F.3d 1281,
n.2
(11th
Strickland’s
Cir.
performance
2013)
(“The
prong,
which
relevant
calls
question
for
an
under
objective
inquiry, is whether any reasonable lawyer could have elected” [such
action] “for strategic or tactical reasons. . . .”).
- 44 -
The Court finds Menard has not demonstrated the state court's
adjudication of this claim was contrary to clearly established
federal law nor based upon an unreasonable determination of the
facts.
Ground Six is denied.
28 U.S.C. § 2254(d).
G. Ground Seven: Ineffective assistance of counsel for
failing to request special jury instruction regarding
use of justifiable force.
Menard claims he was justified to use force because he was
placed in a position of imminent danger of death or great bodily
harm
and
trial
counsel
should
have
requested
a
special
jury
instruction on justified force when engaged in unlawful activity.
Doc. #1 at 13.
In his Memorandum, Menard “respectfully withdraws Ground 7
from this Court’s consideration in light of the Florida Supreme
Court’s decision in State v. Floyd, 186 So. 3d 1013 (Fla. 2016)
and for the reasons cited by the state trial court.”
36.
Doc. #4 at
Ground Seven is deemed voluntarily dismissed.
DENIAL OF CERTIFICATE OF APPEALABLITY
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (COA).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such
a showing, a petitioner must demonstrate that “reasonable jurists
- 45 -
would find the district court's assessment of the constitutional
claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were adequate to deserve encouragement
to proceed further,”
Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003) (citations omitted).
Petitioner has not made the requisite
showing here and may not have a certificate of appealability on
either ground of his Petition.
Accordingly, it is hereby ORDERED:
1.
Petitioner’s motion to voluntarily dismiss Grounds Five
and Seven of the Petition incorporated in his Memorandum (Doc. #4)
is GRANTED and Grounds Five and Seven are voluntarily dismissed.
2.
Petitioner’s Writ of Habeas Corpus (Doc. #1) is DENIED.
3.
Petitioner is DENIED a certificate of appealability.
4.
The Clerk of Court shall moot any pending motions, enter
judgment and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2020.
SA: FTMP-1
Copies:
Counsel of Record
- 46 -
20th
day
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